It's been said that power comes from knowledge. This is certainly true when it comes to your child’s special education program. Most parents of special needs children are not lawyers; however, it is important that they have a general understanding of the law in order to become better advocates for their children. As such, I have summarized some seminal cases that have shaped special education law.

Special education law starts in Congress. Congress and each state make laws (called codes), and then the courts interpret the law when they decide “cases.” These federal and state codes “trump” district policy. In other words, if the school district policy is in conflict with either federal or state law, the district policy is wholly unenforceable. Therefore, whenever you hear a district representative tell you that “our policy is…” consider it suspect.

Special education laws also require that every eligible child receive a “Free and Appropriate Public Education” (“FAPE”). In addition, the law gives a parent the right to participate in developing their child’s “Individualized Education Program” (“IEP”) to ensure that their child receives an “appropriate” education.

When a dispute over the IEP reaches an impasse, the law becomes the focus of resolving the disagreement. We often hear about parents using the law to protect a child’s rights, but a school district may also use the law to support its IEP recommendations or to make a change in a child’s program without parental consent. Whatever the context, one important principle is that the party bringing the action must prove by a preponderance of evidence that the child’s program is, or is not, appropriate. This means that evidence supporting the party’s position shows that it is “more likely than not” that their position is correct.

Understanding special education law will help you understand how your child’s rights are protected. These cases are an illustration of how the law works. There are thousands of cases and the law might be interpreted differently in different areas of the country. But exposure to even as few as 7 important cases will help you become a better advocate for your child as you learn by illustration the legal standard of an appropriate education.

Rowley: An Appropriate Education Requires “Some Educational Benefit.”

Rowley was an important case because it established a broad standard to measure whether the IEP provides an appropriate education. Under the Rowley decision, an IEP must provide “some educational benefit.” Thus, the natural question is “what is some educational benefit?” The answer is specific to the facts and circumstances surrounding the case.

Amy Rowley was a deaf student who performed better than the average child in the general education classroom. The dispute concerned whether Amy should receive a sign language interpreter in all of her classes. The school district provided a hearing aid and individual tutoring and speech therapy. Amy utilized the hearing aid and lip reading to maintain her level of achievement but missed some classroom instruction because she lacked an interpreter. Her parents claimed that Amy should have an interpreter in school.

In determining whether Amy received “some educational benefit,” the court focused on Amy’s passing grades and advancement. The court could have focused on the class instruction Amy missed because she lacked an interpreter. Instead, the Court held that Amy’s IEP provided services that contributed to Amy’s success in the general education classroom. The court held that the school district was not required to provide the “best” possible educational services.

Rachel H: The Least Restrictive Environment is determined by Looking at Four Factors.

The concept of “least restrictive environment” mandates that a special needs student is educated, to the maximum extent appropriate, in the regular classroom. In Rachel H. the court identified four factors to determine if placement in the regular classroom was appropriate. First, what were the educational benefits of the regular classroom, supplemented with appropriate aids and services, compared to the special education classroom? Second, how significant were the benefits of interacting with non-disabled children? Third, what was the effect of the student’s presence on the teacher and other children in the regular classroom? Fourth, what were the costs of mainstreaming the student?

In Rachel H., Rachel was an 11-year old child with moderate mental retardation. The school district wanted to place Rachel in all special education classes. However, Rachel’s parents wanted Rachel educated in the general education classroom because they believed that interaction with non-disabled peers provided Rachel with social and educational benefits.

The court ruled in favor of the parents, finding the general education placement was appropriate. The court determined Rachel benefited academically and socially in the general education classroom, there was no negative impact on the regular teacher or students, and the district was unable to support their claim that the general education classroom was cost prohibitive.

Amanda J: The Failure to Provide Critical Information is a Denial of the Parent's Right to Participate.

Equal participation is more than just the parent’s right to show up at the IEP meeting. If access to information is limited, then so is the ability to meaningfully participate.

In Amanda J., the court ruled that withholding critical information from a parent prohibited parental participation in the educational planning process. The problem arose after the school district found Amanda eligible for special education as developmentally delayed but one of their evaluations suggested autism. The school district did not share this information with Amanda’s parents until over a year after the assessment was performed. The court held that Amanda’s parents were denied a free and appropriate public education because the failure to provide them with the autism assessment was a procedural violation that denied the parents the right to participate in their child's education.

Shapiro: Failure to Include Certain IEP Team Members is a Denial of FAPE.

In order to ensure a meaningful exchange of information and expertise in developing the IEP, the law requires certain IEP team members be present at the IEP meetings. The required team members include the parent, a special education teacher, a regular education teacher (if the child is, or may be, placed in regular education), persons who can interpret any assessment results, and an administrator who is knowledgeable about the district’s programs and can commit the district resources.

In Shapiro, the school district failed to invite the child’s private school teacher to her IEP. The court held that the failure to invite the child’s teacher meant the team lacked the knowledge and expertise that Congress intended was necessary to create an appropriate IEP. The district’s failure amounted to a “defective” IEP and loss of educational opportunity for the child. Shapiro is important because it illustrates the importance of including required IEP team members. Remember, as a parent, you are a required member of the IEP team.

Deal ex re. Deal: Failure to Discuss Parent’s Suggestions is a Denial of the Right to Participate.

Perhaps the most basic form of parental participation is the right to ask questions and make suggestions at their child's IEP. The school district is not allowed to “set in stone” its IEP program prior to the IEP meeting ( a violation called predetermination). Instead, the school district must have an open mind at the IEP meeting, and be fully willing to discuss and consider the parent’s suggestions regarding their child's educational programming.

In Deal ex re Deal, the court found the district’s refusal to discuss the parent’s preferred program at an IEP established that the district predetermined the IEP, a violation that denied FAPE. The school district lacked an open mind and willingness to consider other options. The district had invested money in a method of teaching that was different than the method sought by the parents. The school district refused to discuss the parent's recommended program because of their investment in its own program. Deal ex re Deal illustrates the school must be receptive to the parents suggestions and give parental input consideration.

In order to access a free appropriate public education, a student’s special needs may require more than just academic instruction. The law recognizes this need by defining a free and appropriate public education to include not only “special education services" but also "related services.” Amber Tatro had cerebral palsy and needed help with her catheter every few hours. Without help, Amber was unable to attend school because of the health risks. Although the school district agreed to provide special education services, they refused to provide a qualified service provider to perform the catheter service.

The court held that related services included professional assistance with the catheter because it was necessary for Amber to benefit from and access her education. Unless a physician is required to provide the services, the school district must provide the related service(s). In Tatro, a school nurse was capable of providing the services Amber needed to attend school and therefore the school district was required to provide it.

Burlington School Committee: Parent’s may be Entitled to Reimbursement for Private Placement

During the pendency of an action to enforce a special needs child's rights, it’s not uncommon that a parent will pay for private services or a private school placement. Burlington School Committee addresses the issue of reimbursement.

In Burlington, the student’s parents sought payment for private school expenses from the school district. The school district refused. The court found reimbursement was proper because the school district failed to offer an appropriate education and the parent’s choice of schools was appropriate.

This rule can be summarized as follows: If the school district fails to offer an appropriate education and the parent's unilaterally place their child in an appropriate program after notice, then the school district is required to pay for the private education.

If the school district's IEP was appropriate or the parent’s unilateral placement was inappropriate, then the parent will be barred from reimbursement. With the 1997 revisions to the IDEA, the parent now has an obligation to provide the school district with written notice of their intent to withdraw their child from the public school district, place their child in private school, and intent to seek reimbursement from the school district due to a denial of FAPE.

Foundational Concepts: Special Education Law is Complex

These seven cases are merely the tip of the iceberg. By providing these select cases, hopefully you’ll take away a sense of your rights and how the courts establish rules to protect those rights. Because literally thousands of cases interpret Federal and State codes and regulations, it is impossible to address every issue before they arise. Before assuming the law, consult an attorney who is familiar with the statutory and case law in your jurisdiction (area).

This article was written by Special Education Attorney Thomas S. Nelson. If you would like more information or your child is facing a problem discussed in this article, please contact Thomas S. Nelson for a free consultation.

Thomas offers free phone consultations and in person IEP evaluations because he values the importance of an objective assessment of your child’s program. Because of the "Attorney Fee Recovery" provision under the IDEA, he often works with clients on limited incomes. Before concluding that you are unable to afford an attorney, call for a free evaluation so you'll have the power to direct the next step. Thomas Nelson is here for you!

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